Deputy Ombudsman wanted P250K - Mendoza lawyer

MANILA, Philippines - When the incident investigation and review committee (IIRC) on the Aug. 23 Quirino Grandstand hostage incident finally uses the word “extort,” it almost seems like an afterthought. The word is buried in the second to the last paragraph of the last page of the report it submitted a month ago to President Aquino.

“This is our society,” the report concludes. “It drives otherwise ordinary and simple men to turn into murdering monsters at a snap. Because they feel oppressed and need justice but are asked for money. They ask for redemption but are faced with extortion. Officials without shame, policemen without competence, politicians without care, reporters without conscience, a nation without luck. Mendoza was only the instrument in the murder of eight innocent human beings.”

Yet the paragraph, coming at the tailend of a lengthy review of the actions, and inactions, of government officials and private entities, effectively defines the report and redefines hostage-taker Rolando Mendoza in the eyes of the public.

Here is Mendoza, a dismissed policeman who murdered eight foreign tourists and cast the country under a cloud of shame and infamy, painted as a victim of injustice and incompetence. Yet here, too, is a bemedalled policeman who lost his job on charges of extortion, portrayed by the committee as a victim of extortion himself. Clearly, while the committee has no sympathy for Mendoza’s actions, it has much sympathy for his plight.

The five-person committee lays the blame for the bungled hostage rescue on officials of the Department of the Interior and Local Government (DILG) and the Philippine National Police (PNP). But the committee squarely lays the blame for Mendoza’s radical actions on yet another institution: the Office of the Ombudsman.

Throughout the report, the committee scores a seemingly endless series of missteps and mistakes that showed “manifest injustice and oppression” by the Office of the Ombudsman against Mendoza. These incidents, the IIRC says, were the trigger for Mendoza’s actions.

“The proximate cause of his (Mendoza’s) actuation being the slow wheels of justice and in this case, at the Office of the Ombudsman,” the IIRC report states.

These failures were further colored by two things: what the committee called the “undue interest” of the Ombudsman in Mendoza’s case, and reports that an official from the Office of the Ombudsman had demanded P150,000 from Mendoza in exchange for the dismissal of the charges against the former policeman.

A P250,000-bid?

But the last lawyer to represent Mendoza in his bid to be reinstated has since told PCIJ that the amount was actually P250,000.

“Captain Mendoza disclosed to me that the Ombudsman had asked, not 150, but 250 thousand pesos for the dismissal of the case against him,” says Ernesto Cabrera, who was hired by Mendoza in November 2009 to pursue his reinstatement in the service.

Cabrera also says that Mendoza had already agreed to pay the amount. The problem, he says, was that Mendoza could not raise the entire amount by himself.

“On the third or fourth week (after I took over his case), he went back to me,” recounts Cabrera. “According to him, he has big retirement benefits and wanted to give in to the demand. He was ready to give but they (co-respondents) have to share (in the amount), but the co-respondents did not want to give their share, so that intention of his bogged down.”

Aside from Mendoza, four other police officers had been dismissed from the service by Gonzalez for the extortion complaint filed by Christian Kalaw in 2008.

Pag-IBIG loan

With more than P5 million in retirement benefits hanging in the balance, Mendoza sought another avenue, Cabrera says. According to the lawyer, Mendoza asked him for help to refund a loan he took out six years before from Pag-IBIG, or the Home Development Mutual Fund.

“There was a time he requested for a refund of his Pag-IBIG,” says Cabrera. “He had applied for a house and lot and discontinued this.”

Cabrera wrote the Pag-IBIG main office in Makati, and was able to facilitate the partial refund of Mendoza’s loan. In return for his help, Cabrera said Mendoza gave him P3,000.

“The money was refunded to him, so he had the money,” Cabrera says. But the lawyer says it was not clear if Mendoza was ever able raise the entire amount to pay off his alleged tormentors, as the money from Pag-IBIG amounted to just “more than a hundred thousand pesos.”

It is also not clear to Cabrera if Mendoza made any payment to anyone from the Office of the Ombudsman.

Cabrera adds that while Mendoza gave him the last name of the person who allegedly demanded the amount, Mendoza was never specific.

“He told me it was a Mister Gonzalez (who asked for the money),” he says. “I don’t know if there is a Gonzalez there, who was the one who asked for that money.”

A check with the Pag-IBIG main office in Makati shows that Mendoza had taken out a housing loan in 2004, for two properties at the South Fairway Classic Homes in Block 39, lot 77-79, Barangay Landaya, San Pedro Laguna for the amount of P500,000.

But Mendoza had canceled the loan in May 2009, just months after his dismissal order was handed down by the Office of the Deputy Ombudsman, and on the same month that the dismissal order was affirmed by the acting Ombudsman, Orlando Casimiro. The process is called a “voluntary surrender” of a housing loan, where the surrenderee can reclaim 50 percent of the amount he had already amortized to the Pag-IBIG Fund.

Check for P196,000

A check with the Cash Department of Pag-IBIG also shows that the Fund had released a check voucher for P196,913.51 to Rolando del Rosario Mendoza on Feb. 15, 2010. Pag-IBIG records show as well that the release of the check was facilitated after a written request was made by Mendoza’s legal counsel, Atty. Ernesto Cabrera.

About six months later, Cabrera would hear a lesser amount supposedly mentioned by Mendoza, while the dismissed policeman was holding tourists hostage, as being demanded from him by an official from the Office of the Ombudsman.

During the IIRC’s two-week marathon hearings, Police Major Romeo Salvador, one of the negotiators, also testified that he overheard Mendoza cursing Deputy Ombudsman for Military and Other Law Enforcement Offices (MOLEO) Emilio Gonzalez III over the telephone for demanding P150,000 before he could rule on Mendoza’s case.

Gonzalez was the official who ordered the dismissal of Mendoza on charges of extortion in February 2009.

In its report, the committee mentions the incident on page 75: “As expected, Mendoza – who previously berated Deputy Gonzalez for allegedly demanding P150,000 in exchange for favorably resolving the motion for reconsideration – rejected and branded as trash the Ombudsman letter promising review, triggering the collapse of the negotiations.”

Oblique reference

Yet the next time the committee made reference to the incident was in the last page of the report, where it spoke of people who ask for “redemption” but are instead faced with “extortion.”

It was a rather curiously oblique way of accusing the Office of the Ombudsman of a major offense. But some of those familiar with the discussions within the committee say that the committee was “inclined to give credence” to Salvador’s testimony. An insider adds that the committee members saw “no reason” for Mendoza to lie while he berated Gonzalez on the telephone.

“There is an inclination within the committee to believe the incident,” says the insider who was present at the IIRC discussions. “Salvador’s testimony has weight. The committee also saw no reason for Mendoza to lie at the time he made these statements.“

Non-appearance

The problem was that Gonzalez had refused to appear before the committee to give his side. Ombudsman Merceditas Gutierrez had declared that her office would not take part in the investigation, since it was an independent and co-equal institution.

As a result, the committee, while inclined to believe that Mendoza spoke what he believed to be the truth, could go no further than make oblique references that Mendoza was a victim of extortion.

“This is the evaluation of the committee, but the committee wants the issue to be subject to further investigation,” says someone privy to the committee goings-on.

In the final report, the IIRC recommended the referral of its findings to the Office of the President “for further determination of possible administrative offenses.” For Gutierrez herself, the IIRC recommended a probe to see if her offenses serve as grounds for impeachment.

The PCIJ tried to get Gonzalez to comment on the allegations of extortion, but he refused to comment and instead referred PCIJ to Assistant Ombudsman Jose de Jesus, the designated spokesman of the Office of the Ombudsman.

“Very vague sa amin ang accusations, but we are not closing the door into the matter,” De Jesus says. “If anyone will come out with accusations, with evidence, naming who was really extorting, (then we may look into it).”

“We have many Gonzalezes here,” he also says. “Which Gonzalez is he (Cabrera) referring to?”

Internal Affairs

And yet De Jesus says that Ombudsman Gutierrez has already referred the issue of extortion to the Internal Affairs Board of the Office of the Ombudsman. The board will determine if there is basis to file any charge against Emilio Gonzalez III.

The Board’s head is Overall Ombudsman Casimiro, who as acting Ombudsman had affirmed Mendoza’s dismissal from the service.

De Jesus says Cabrera could file a complaint with the Board if he is serious with his allegations. “If there is a lawyer saying that, if he can submit to our internal affairs board any evidence he has (he should do so),” De Jesus says. “Especially if he can identify the person (who made the offer.)”

But he says, “I think Deputy Ombudsman Gonzalez was asked (about the issue), and he explained, ‘How can I do it, I don’t know Mendoza personally, I have not met him personally, and I have not done it’.”

“We have no basis except for that accusation, and then there is already a denial (on the part of Gonzalez),” he says.

Scathing report

The IIRC, however, apparently sees the matter differently. Insists an IIRC insider: “The way the committee sees it, (Mendoza) was serious about what he was saying.”

It may be for this reason that the committee issued its most scathing comments against the Office of the Ombudsman. While it could not recommend any charges of extortion against officials at the Ombudsman’s office, the committee charged the office with “inexcusable negligence” in delaying Mendoza’s case, and questioned the “undue interest on the case” of Mendoza.

“Ombudsman Gutierrez and Deputy Ombudsman Gonzalez committed serious and inexcusable negligence and gross violation of their own rules of procedure in failing to promptly resolve without justification, and despite repeated written pleas, Mendoza’s motion for reconsideration to the judgment of dismissal, which prolonged inaction precipitated the desperate resort to hostage-taking,” the committee report stated.

Anatomy of a charge

The dismissal of Mendoza and four other policemen belonging to the Manila Police Mobile Unit stemmed from a charge of extortion filed by student-chef Christian Kalaw in 2008. Kalaw alleged that he was manhandled and threatened by Mendoza’s men after they accosted him near La Salle University in Manila. Kalaw said that he was brought to Mendoza’s office at the Manila Police Mobile headquarters, where Mendoza allegedly demanded P200,000 in exchange for Kalaw’s freedom. In his affidavit-complaint, Kalaw said they ended up settling for P20,000.

But the complaint against the policemen failed to prosper before the City Prosecutor’s office, largely because Kalaw never appeared to pursue his complaint. The same case was elevated to the PNP’s Internal Affairs Service, where it was also dismissed for failure of Kalaw to appear.

Then in July 2008, Deputy Ombudsman Gonzalez directed the PNP to turn the case over to his office, an act that drew this observation from the IIRC: “It appears that the Ombudsman exercised jurisdiction over the case based on a letter issued motu propio by Deputy Ombudsman Emilio Gonzalez III, directing the PNP-NCR – without citing any reason – to endorse the case against Mendoza and the arresting policemen to his office for administrative adjudication, thereby showing undue interest on the case.”

Seven months later, Gonzalez ruled for the dismissal of Mendoza and the four other policemen. The ruling was approved by Acting Ombudsman Orlando Casimiro in May 2009.

The committee pointed out that the ruling was based “on the sole and uncorroborated complaint-affidavit of Christian Kalaw, which was not previously sustained by the City Prosecutor’s Office and the PNP Internal Affairs Service.” In other words, the one and only piece of evidence considered by Gonzalez’s office was the first affidavit executed by Kalaw when he filed his complaint before the City Prosecutor’s Office.

Five-day period

Still, Mendoza had recourse; under the rules of the Ombudsman, he could file a motion for reconsideration that had to be resolved within five days of filing. Mendoza filed his motion in November 2009. The motion for reconsideration remained unresolved for nine months, until Mendoza finally took his hostages.

“By allowing Mendoza’s motion for reconsideration to languish for nine long months without any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzalez committed complete and wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in administrative disciplinary cases within five days from submission,” the IIRC report notes. “The inaction is gross, there being no opposition to the motion for reconsideration.”

Adding yet another complex layer to the mix, the Ombudsman ordered Mendoza’s dismissal to be enforced immediately. In a 2008 ruling (Samaniego vs Ombudsman), the Supreme Court ruled that judgments of the Ombudsman in disciplinary cases become executory only after denial of an appeal. “This implies,” says the IIRC report, “that an Ombudsman judgment of dismissal cannot be executed if subject of a pending appeal.”

“If an Ombudsman judgment of dismissal cannot be executed when subject to a pending appeal before the higher courts, what more for a judgment of dismissal that is still subject of pending reconsideration before the Ombudsman,” the committee says.

Soft heart

For his part, Assistant Ombudsman De Jesus defends the slow resolution of Mendoza’s case by saying the Ombudsman receives thousands of complaints a month. In addition, De Jesus says the five-day period to resolve motions for reconsideration is not mandatory.

“Since the office has a soft heart for dismissed employees, so the practice is to have it studied very well, studiously and laboriously,” he says. “The length of time in this case occurred because of the laborious and thoughtful study put into the case all over again.”

“There is no violation of the law (with regard to the five-day period to resolve motions for reconsideration),” asserts De Jesus. “Because we’re talking about livelihood, the life of the respondents, and their families, that’s why this was being studied very carefully. We have to reckon the fact that this is not the only case in our office. We have only a few lawyers.”

Own MR

De Jesus says the Ombudsman is also aware of the Samaniego doctrine, which states that penalties greater than one-month suspension are not executory so long as there is a pending appeal. But he says that the Ombudsman is contesting the Supreme Court ruling with its own motion for reconsideration. Until that motion is resolved, he argues, the Ombudsman believes all its rulings are immediately executory.

The IIRC, however, thinks otherwise.

“Had the Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may have ended differently,” its report says.

This may be partly why, in the last page of its 82-page report, the committee paints Mendoza as a villain, but one who was among many other villains, a criminal who was a victim as well, “a man with a perceived injustice and oppression done against him, so common in Philippine society, cornered and forced to a murderous and insane mission.”